from the indeed dept

One of the great disappointments around here was William Patry's decision to (mostly) shut down his old blog about a year ago. His contributions to the discussions on copyright were incredibly valuable, and the loss of his voice in the debates left a huge void. In part, it's why I was thrilled to read his book (which, yes, is available as a part of our Book Club), as it reminded me again of Patry's insight on these subjects. I'll be posting a full review of his book next month, but I was going to say that it was certainly a must read for those who missed the blog... However, with the book almost available, even better news came about, as he recently launched a new blog related to the book.

On it, he's hosting a back-and-forth discussion with an entertainment industry lawyer who disagrees with him, Ben Sheffner, which goes into the same discussion we had last week concerning Sheffner's highly questionable claim that the jury rulings against Tenenbaum and Thomas somehow represent the views of everyday people on copyright. In that ongoing discussion, Patry does a nice job highlighting how the entertainment industry keeps trying to kill off innovation and protect its old business models via copyright while failing to do the one thing it should have done all along: build a real business with new business models that embrace the changing market:

I don't deny the RIAA was entitled to bring all the suits it did (aside from the many false accusations of course), but the business of companies that want to sell mass market goods to consumers is not suing those consumers. The business of the RIAA may be doing that because it has to justify its own existence, but the business of business is business, not litigation. One would never know that from the industry's reaction to virtually every new digital technology that has come along; for example, the suit against MP3.com over storage lockers, and the eventual bankrupting of that company was, in my opinion, a terrible mistake and certainly anti-consumer. (I represented the defendant for awhile). There was no evidence that Mp3.com's security -- which required verification that the consumer had bought a legitimate CD -- had ever been broken; instead, the industry wanted to force consumers to buy multiple CDs of a work they had already bought, rather than letting them listen to it regardless of where they were.

The industry's suit against Launchcast, brought deliberately while it was being bought by Yahoo, was a similar anti-consumer suit. (Yes, I represented defendant there for awhile) too. Launchcast was engaged in the authorized streaming of music, in conjunction with intelligent software designed to learn consumers' test and that helped introduced consumers to new music. The service could never result in loss of sales; quite the opposite. The functionalities the industry objected to had nothing to do with violation of any rights remotely granted by the copyright act. There are many more examples in addition to MP3.com and Launchcast.

The industry's failure to offer any alternative after Napster isn't just a small oversight; in my view, when coupled with the industry's repeated suits against almost any business it had not authorized (read controlled), and the decision to send out massive cease and desist letters and suits against individuals, that failure is directly responsible for the highly negative attitude many people have toward the industry. The failure of the industry to provide a way for people to access legitimate product led consumers both to unauthorized product and to rightly conclude that copyright was the primary weapon being used to thwart consumers' desires. I really don't think these assertions should be controversial. I repeat that copyright doesn't create economic value, a statement that is not intended to disparage copyright; it is merely to state the obvious: it is only consumers' willingness to buy something that creates economic value.

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Napster started in 1999, was caught in legal troubles in 2000, and shut its doors in mid-2001.

iTunes was introduced as Mac-only in 2001 and wasn't available for PCs until late 2003. That's 4 years after Napster hit, and 2 years after Napster closed it's doors. What's more, iTunes for Windows only supports syncing with the iPod which limits it's usability for people who don't want to pay premium for Apple-brand products.

Additionally, music bought from the iTunes store before 2009 was DRM-protected and couldn't be played on non-iPod devices.

So... yeah. iTunes was late, limited, and weak. The Industry worked with Apple, for reasons I still don't understand, and THAT'S why it dominates the way it does these days -- the industry killed all it's competition for them.

*cough* Itunes *cough*

>>*cough* Itunes *cough*

The recording industry was dragged kicking and screaming into the ITunes deal, and statements by a lot of recording industry execs suggest that they still would like to see iTunes go away and leave them alone, despite the fact that they are making a ton of money off of it. The would still rather sell $15 physical CD's rather than $1 downloaded tracks.

Re: *cough* Itunes *cough*

And therein lies the myopia of the music industry.
Short term: $15 for a CD might average about $150 that day, and about $55K per year, but ONLY if 10 CDs sell EVERY SINGLE DAY for that year.
Long term: $1.30 for a song download may not amount to the same daily average, but more people would be willing to spend a little bit many times over, and thus will end up with more profit. (I refuse to attempt the theoretical math on that part)

Messrs. Patry and Sheffner are not at all as divergent in their views as your above comments imply. You extend courtesy to Mr. Patry, but consistently decline to do so to Mr. Sheffner. The two gentlemen are in fact having a thoughtful and respectful conversation. It would be appreciated if you did the same.

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Ann Coulter and principles in the same sentence? Please! There are a couple of ways to describe her total ignorance, most of them start with "stun" and have another four letter word after that which is NSFW.

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Word-smithing, but it's arguable that "the consumer's willingness to buy" doesn't necessarily mean that the consumer will or ought to pay. It's a bad title, I'll agree, but consumer's desire (demand) isn't the only thing that drives price.

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Messrs. Patry and Sheffner are not at all as divergent in their views as your above comments imply.

We apparently have been reading different sites. Even Patry and Sheffner have both admitted they disagree with each on many important points.

You extend courtesy to Mr. Patry, but consistently decline to do so to Mr. Sheffner.

I'm curious about this statement. Mr. Sheffner has, on a repeated bases, personally attacked me and this site with baseless, misleading attacks that were either blatantly false or misleading. When I called him on it, he told me that I was to be banned from posting comments on his site.

But at no point have I ever personally insulted Mr. Sheffner. I have pointed out where his ideas are faulty. I do not see where I have ever disrespected him at all. Unfortunately, I cannot say the same is true of Mr. Sheffner.

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Sigh, Mike, you seem to keep wanting to apply facts and accountability to some of the repeated detractors on this site. Please stop, it doesn't work.

Which is not to say dissenting opinions aren't appreciated; they are, particularly by me, so long as they are based on sense and the commentor has accountability. Sadly, emotional arguments seem to be the modus operandi of the misinformation agents...

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Your 1/30/09 response, for example, does seem a bit over the top in describing your view of the commenter, especially since the commenter sought merely to accurately state/clarify a particular aspect of the DMCA.

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Gee, Mike proves an anonymous commenter wrong (and makes him look silly - no wonder he's anon) and the best the AC can come back with is "do a search on some other site" but refuses to actually provide any evidence?

Sorry, AC, you got pwned by Mike here. Looking over the links, it seems Mike's been quite fair to Sheffner. But I did a site search on that link, and it looks like Sheffner has been nothing but obnoxious and insulting to Mike.